COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 86518
MARTHA SHEPHARD, :
Plaintiff-Appellant :
v. :
DIRECTOR, OHIO DEPARTMENT OF :
JOB AND FAMILY SERVICES, :
ET AL., :
Defendants-Appellees :
DATE OF ANNOUNCEMENT
OF DECISION: MAY 11, 2006
CHARACTER OF PROCEEDING: Civil Appeal from
Common Pleas Court,
Case No. CV-548488.
JUDGMENT: AFFIRMED.
DATE OF JOURNALIZATION:
APPEARANCES:
For Plaintiff-Appellant: Jillian S. Davis
Towards Employment, Inc.
1255 Euclid Avenue
Suite 300
Cleveland, OH 44115
For Defendants-Appellees: Jim Petro
(Director, Ohio Department Attorney General of Ohio
of Job and Family Services) Patrick MacQueeney
Assistant Attorney General
State Office Building, 11th Floor
615 W. Superior Avenue
Cleveland, OH 44113-1899
(Economy Enterprises, Inc. Leighann K. Poplaski
d/b/a Nielsen’s Stores) 903 Eastwind Drive
Westerville, OH 43081
CHRISTINE T. McMONAGLE, J.:
{¶ 1} Appellant, Martha Shephard (“Shephard”), appeals from the
judgment of the Common Pleas Court, which affirmed the finding of
the Unemployment Compensation Review Commission (the “Commission”)
that she quit her job without just cause and is therefore not
entitled to unemployment benefits. We affirm.
{¶ 2} Shephard filed an application for unemployment
compensation with appellee, Director, Ohio Department of Job and
Family Services. Appellee issued an initial determination of
benefits granting the claim, finding that Shephard quit her
employment with just cause due to a medical condition. The
employer, Economy Enterprises, Inc., d/b/a Nielsen’s Stores,
appealed this determination; appellee subsequently issued a
redetermination that affirmed its earlier decision. The employer
appealed the redetermination and the Director transferred
jurisdiction to the Commission, which assigned the matter to a
hearing officer.
{¶ 3} Shephard and Jack Trombley, Vice-President of Economy
Enterprises, Inc., testified at the hearing. Shephard was employed
from October 1999 through February 2004 as an assistant
manager/cashier at Nielsen’s convenient store in the Diamond
Building. Her duties included receiving and putting away
deliveries, stocking and cleaning the shelves, and waiting on
customers.
{¶ 4} Shephard testified that when she was hired, she informed
Nielsen’s about problems she had with her right knee. In 2001,
she submitted a doctor’s statement to Nielsen’s which indicated
that she needed two 15-minute breaks each day due to her knee
problems. Shephard testified that she was never able to take her
required breaks, however, because of the volume of work she was
expected to perform. Shephard testified further that the only
accommodation her employer ever made for her was to provide her
with two milk crates to sit on when there were no customers in the
store. She admitted, however, that she never told Trombley that
she was not getting enough time to sit during the day, even though
he visited the store several times each month.
{¶ 5} In September 2003, Shephard began experiencing problems
with her right foot. She saw a doctor in October 2003 regarding
her condition and learned that she had a heel spur. Shephard
admitted that she told Dawn Swartwood, Nielsen’s area manager, that
she was having problems with her foot, but did not ask for any
special accommodation in light of her condition.
{¶ 6} On January 14, 2004, Shephard submitted a letter of
resignation which stated, “I Martha Shephard will no longer work
for Nielsen’s as of Feb. 6, 2004 after 2:30 p.m., due to pay rate
and medical reasons. (R.Foot).”
{¶ 7} Shephard testified that she quit her job because of her
health. According to Shephard, the condition with her foot “had
got so unbearable, it was kind of hard for me to even stand or walk
on it. I couldn’t perform the duties of standing *** which that
job called for.”
{¶ 8} The record indicates that prior to February 6, 2004, the
effective date of her resignation, Shephard presented no medical
evidence to Nielsen’s indicating that she was physically unable to
work at her job. Instead, the record reflects that Shephard
submitted a letter dated January 28, 2004 from Dr. Robert T. Bair,
in which Dr. Bair advised that Shephard was examined on January 28,
2004, and cleared to return to work as of that date.
{¶ 9} After filing her claim, Shephard submitted a letter to
appellee from Dr. Carl Robson. The letter, which was dated
February 17, 2004, indicated that Dr. Robson was treating Shephard
for degenerative arthritis and plantar fasciitis and that he had
recommended that she quit her job because it involved “standing 8
hours, with much walking” and “she is unable to continue with this
work.”
{¶ 10} Shephard testified that her resignation letter referenced
her pay rate because she was having a hard time paying her medical
bills out-of-pocket. She testified that “a raise would have helped
me some,” but insisted that she quit her job because of her health,
not because of the pay. Shephard admitted that she had asked
Trombley for a raise, but had never told him that she needed a
raise due to her medical bills.
{¶ 11} Trombley testified that when Shephard informed Nielsen’s
in 2001 of her knee problems, the company made arrangements to
accommodate her by allowing her to sit during the day, even though
the company generally does not like its employees to sit because
of the image it presents to customers. Trombley testified further
that the company would have been willing to make other
accommodations for Shephard, but she never asked him for any
accommodation regarding her foot problems. He admitted, however,
that it would have been futile for Shephard to ask for a position
where she did not have to be on her feet at all, because “we don’t
have positions for that.” Finally, Trombley testified that
Shephard asked him about a raise several times, but never mentioned
that it was related to her medical bills.
{¶ 12} The hearing officer subsequently issued a written
decision modifying the Director’s redetermination and concluding
that Shephard quit her employment without just cause. He stated:
{¶ 13} “Claimant contends that she quit her employment with
Economy Enterprises because she was no longer able to perform her
duties as an Assistant Manager as the result of a heel spur on
[her] right foot. The evidence, however, indicates that claimant
was more concerned with her rate of pay than her foot. While
claimant discussed her pay with the Vice-President on multiple
occasions, she never broached the subject of accommodations with
him before resigning.
{¶ 14} “Even if her foot was (sic) the principal reason for
claimant’s resignation, by failing to enquire (sic) about
accommodations for her condition, claimant did not take all of the
steps reasonably available to her to maintain her employment before
quitting.”
{¶ 15} In light of his finding that Shephard quit without just
cause, the hearing officer concluded that she was not entitled to
unemployment compensation. In addition, he concluded that Dr.
Robson had indicated that Shephard was unable to work and,
accordingly, disallowed her claim for the weeks following her
resignation.
{¶ 16} The Commission subsequently disallowed Shephard’s request
for review. Shephard then filed an appeal with the Common Pleas
Court, which affirmed the Commission’s decision to deny
unemployment benefits to Shephard on the basis that she quit her
employment without just cause. Shephard timely appealed the trial
court’s judgment.
{¶ 17} In her first assignment of error, Shephard contends that
the trial court erred in affirming the denial of unemployment
benefits because she quit her job with just cause.
{¶ 18} Unlike most administrative appeals where we employ an
abuse of discretion standard, see Lorain City School Dist. Bd. of
Educ. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260-
261, our standard of review on appeal from a decision of the
Commission is the same as that of the Common Pleas Court. This
court “may reverse the board’s determination only if it is
unlawful, unreasonable, or against the manifest weight of the
evidence.” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73
Ohio St.3d 694, 696, 1995-Ohio-206. In making this determination,
we must give deference to the Commission in its role as finder of
fact. Irvine v. Unemployment Comp. Bd. of Rev. (1985), 19 Ohio
St.3d 15, 18. We may not reverse the Commission’s decision simply
because “reasonable minds might reach different conclusions.” Id.
On close questions, where the board might reasonably decide either
way, we have no authority to upset the agency’s decision. Id.
Instead, our review is limited to determining whether the
Commission’s decision is unlawful, unreasonable, or totally lacking
in competent, credible evidence to support it. Id.
{¶ 19} R.C. 4141.29(D)(2)(a) provides that an individual may not
obtain unemployment benefits if he “quit his work without just
cause.” Traditionally, just cause is that which, to an ordinarily
intelligent person, is a justifiable reason for doing or not doing
a particular act. Irvine, supra, at 17. The determination of
whether just cause exists depends on the “unique factual
considerations” of a particular case and is, therefore, primarily
an issue for the trier of fact. Id.
{¶ 20} Initially, we note that it is well established that the
burden of proof in an unemployment compensation case is on the
employee to prove that she was discharged by her employer without
just cause, or quit work with just cause, and is therefore entitled
to unemployment benefits under R.C. 4141.29(D)(2)(a). Accordingly,
we reject Shephard’s contention that the burden in this case was on
her employer to demonstrate that she quit without just cause.
{¶ 21} We also reject Shephard’s argument that the hearing
officer was required to give more weight to her testimony than
Trombley’s because R.C. 4141.46 provides that the provisions of the
Unemployment Compensation Act are to be liberally construed. “The
agency and the court have a duty to construe the statute liberally
for the claimant’s benefit.” Dailey v. Admin., Ohio Bur. of
Employment Serv. (Jan. 22, 1987), Cuyahoga App. No. 52633.
“However, neither the agency nor the court has a duty to construe
the facts more favorably to either party.” Id.
{¶ 22} Finally, we reject Shephard’s argument that Trombley’s
testimony should have been disregarded because it was hearsay. It
is well settled that a referee may use hearsay evidence in making
unemployment compensation decisions because, as a general rule,
administrative agencies are not bound by the strict rules of
evidence applied in a court. Cully v. Admin., Ohio Bur. of
Unemployment Serv. (Oct. 13, 1994), Cuyahoga App. No. 66187.
{¶ 23} Moreover, Trombley’s testimony was not all hearsay.
Trombley’s testimony about his conversations with Shephard
regarding her requests for a raise was obviously based on his
personal knowledge of these conversations.
{¶ 24} Turning to the merits of her claim, Shephard argues that
she quit her job with just cause because she was in intense pain
and unable to stand on her feet, as required by her job. She
argues that “any ordinary, intelligent person experiencing the same
pain and discomfort would have felt driven to leave the job,” as
she did. She argues further that she quit with just cause because
her employer knew of her condition, but failed to accommodate her.
{¶ 25} The record is clear that Shephard was indeed experiencing
significant pain as a result of her arthritis and heel spur. The
record is also clear, however, that before she quit, Shephard never
asked Nielsen’s to accommodate the condition with her heel spur.
{¶ 26} “***[G]enerally, employees who experience problems in
their working conditions must make reasonable efforts to attempt to
solve the problem before leaving their employment. Essentially, an
employee must notify the employer of the problem and request it be
resolved, and thus give the employer an opportunity to solve the
problem before the employee quits the job; those employees who do
not provide such notice ordinarily will be deemed to quit without
just cause and, therefore will not be entitled to unemployment
benefits.” DiGiannantoni v. Wedgewater Animal Hospital, Inc.
(1996), 109 Ohio App.3d 300, 307.
{¶ 27} Employees who quit for medical reasons are no exception
to the general rule. As the Ohio Supreme Court held in Irvine v.
Ohio Bd. of Unemployment Comp. (1985), 19 Ohio St.3d 15:
{¶ 28} “An employee’s voluntary resignation on the basis of
health problems is without just cause within the meaning of R.C.
4141.29(D)(2)(a) when the employee is physically capable of
maintaining a position of employment with the employer, but fails
to carry her burden of proving that she inquired of her employer
whether employment opportunities were available which conformed to
her physical capabilities and same were not offered to her by the
employer.”
{¶ 29} Here, the record is clear that Shephard never gave
Nielsen’s an opportunity to make any special arrangements for her
before she quit her job. She admitted that although she told
Nielsen’s area manager about the problems with her heel spur, she
never requested that Nielsen’s make any special accommodation for
her in light of her condition. Moreover, although she spoke with
Trombley several times about her need for a raise, she never told
him about the medical problems with her right foot. Furthermore,
although Dr. Robson had apparently recommended that Shephard quit
her job, Shephard did not provide any medical documentation
regarding the severity of her condition to Nielsen’s.
{¶ 30} “Irvine found [that] an ordinarily intelligent person
with a health problem would not quit their employment without first
notifying their employer of the problem and thus giving the
employer an opportunity to make suitable arrangements.”
DiGiannantoni, supra.
{¶ 31} Because Shephard failed to establish that she notified
Nielsen’s of her problem and gave it an opportunity to make
suitable arrangements for her before she quit, we find that the
Review Commission’s decision was not unlawful, unreasonable or
against the manifest weight of the evidence.
{¶ 32} Appellant’s first assignment of error is overruled.
{¶ 33} In her second assignment of error, Shephard argues that
the trial court erred in affirming the hearing officer’s decision
that she was unavailable for work in the weeks following her
resignation and therefore not entitled to unemployment
compensation. Our resolution of Shephard’s first assignment of
error renders this assignment of error moot and therefore we need
not address it.
{¶ 34} Appellant’s second assignment of error is overruled.
Affirmed.
It is ordered that appellee recover of appellant costs herein
taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court
directing the Common Pleas Court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
CHRISTINE T. McMONAGLE
JUDGE
COLLEEN CONWAY COONEY, P.J., CONCURS.
MARY EILEEN KILBANE, J., DISSENTS WITH
SEPARATE OPINION.
N.B. This entry is an announcement of the court's decision. See
App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will
be journalized and will become the judgment and order of the court
pursuant to App.R. 22(E) unless a motion for reconsideration with
supporting brief, per App.R. 26(A), is filed within ten (10) days
of the announcement of the court's decision. The time period for
review by the Supreme Court of Ohio shall begin to run upon the
journalization of this court's announcement of decision by the
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
2(A)(1).
COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 86518
MARTHA SHEPHARD, :
:
Plaintiff-Appellant : D I S S E N T I N G
:
v. : O P I N I O N
:
DIRECTOR, OHIO DEPARTMENT OF :
JOB AND FAMILY SERVICES, :
ET AL., :
:
Defendant-Appellee :
DATE: MAY 11, 2006
MARY EILEEN KILBANE, J., DISSENTING:
{¶ 35} I respectfully dissent from the majority opinion and
would reverse the judgment of the Common Pleas Court.
{¶ 36} I agree with the majority that an individual may not
obtain unemployment benefits if the employee quits work without
just cause. R.C. 4141.29(D)(2)(a). “Just cause” is a justifiable
reason for doing or not doing a particular act, and is measured by
an ordinarily intelligent person standard. Peyton v. Sun T.V. &
Appliances (1975), 44 Ohio App.2d 10. "'There is, of course, not a
slide-rule definition of just cause. Essentially, each case must
be considered upon its particular merits. Traditionally, just
cause, in the statutory sense, is that which, to an ordinarily
intelligent person, is a justifiable reason for doing or not doing
a particular act.'" Irvine v. Unemployment Comp. Bd. of Review
(1985), 19 Ohio St.3d 15, 17, quoting Peyton, supra.
{¶ 37} When determining whether an employee quit work without
just cause, courts must analyze the particular circumstances of the
case in conjunction with the legislative purpose underlying the
Unemployment Compensation Act. Id.
{¶ 38} As a general rule, employees experiencing problems in
their working conditions must notify the employer of the problem,
request it be resolved and give the employer an opportunity to
solve the problem before a court will find just cause for quitting
work. King v. State Farm Mut. Auto Ins. Co. (1996), 112 Ohio App.
3d 664, 669-670. "An employee who resigns before providing her
employer with a reasonable opportunity to correct offensive conduct
in the workplace risks quitting her employment without just cause."
Krawczyszyn v. Ohio Bur. of Emp. Serv. (1989), 54 Ohio App.3d 35,
37.
{¶ 39} However, courts do not always require an employee to
notify his or her employer if the circumstances justify the
employee's choice not to notify the employer of the problem.
DiGiannantoni v. Wedgewood Animal Hospital, Inc. (1996), 109 Ohio
App.3d 300, 308. For instance, if an employee notifies the
employer of a problem and requests that the employer remedy the
situation and the employer fails to do so, the employee may be
relieved of her duty to further pursue internal remedies.
Krawczyszyn, supra.
{¶ 40} Moreover, although R.C. 4141.29(D)(2)(a) disqualifies a
claimant who "quit his work without just cause" from collecting
unemployment compensation benefits, R.C. 4141.46 requires that the
unemployment compensation laws be liberally construed in favor of
the applicant. See also R.C. 4141.46; R.C. 4141.29(J); and
Vespremi v. Giles (1980), 68 Ohio App.2d 91.
{¶ 41} Shortly after beginning work in 1999, Shephard complained
of knee problems that required her to take breaks and sit often. In
response, she was given two milk crates to use as a chair during
any break periods. Although Shephard was able to use the milk
crates to sit on during work hours, she refutes any statement that
after complaining of a knee injury in 1999, she was given a “chair”
to use during working hours. Shephard testified that although she
provided her then area manager, Jerry Hauser, with an excuse from
Dr. Bilfield in November 2001 requiring two fifteen-minute breaks,
she could only intermittently use the two crates to sit, and could
never take scheduled breaks. Tr. at 4-5; See also Exhibit B.
{¶ 42} In September 2003, Shephard began having additional
medical difficulties and was experiencing severe pain in her foot,
which was ultimately diagnosed as a heel spur. Tr. at 3. After
receiving the diagnosis, Shephard informed her area manager, Dawn
Swartwood. Tr. at 4.
{¶ 43} Shephard also testified that she gave Swartwood two
letters, one from Dr. Blaire and one from Dr. Robison stating that
she suffered from heel spurs. Tr. at 7. Trombley’s later
testimony supported both this assertion and Shephard’s earlier
medical complaints when he admitted receiving doctors’ statements
from Shephard regarding her knee in 2001 and 2002, and regarding
her heel in January 2004. Tr. at 22-24.
{¶ 44} There have been repeated assertions that either Shephard
did not inform her employer of her need for an accommodation or
conversely, that when she did inform her employer of a medical
need, the request was met with a sufficient accommodation. Upon
direct questioning from Trombley at Shephard’s hearing, Trombley
stated, “[a]nd we have told you at times, because it’s certainly in
writing from your doctor, but even since then, that even though we
don’t provide a seat per se, the milk crates, which is what most of
the employees end up doing anyway, were there for you to take
breaks with if you needed them; is that right?” Tr. at 19.
Shephard agreed that the milk crates were there if she needed them,
but during the course of her duties, she rarely had a chance to use
the crates. Tr. at 19-20.
{¶ 45} The record also contains a March 17, 2004 e-mail from
Jack Trombley stating that, “[Martha] told us she was supposed to
stay off of her feet occasionally and we told her she could sit
(not allowed by other personell (sic)) whenever she felt it
necessary.” He also stated that, “[d]espite our willingness to
work with Martha, she voluntarily quit.” (March 17, 2004 e-mail.)
{¶ 46} Further, in response to the ODJFS’ request for
information, Trombley stated that, “[t]he most recent medical
problems appeared to be her foot. She had previously and through
most of her time with us, told us about ‘leg’ problems (some
documentation in file concerning her knees). We had accommodated
her by allowing her to sit as necessary behind the sales counter
(not allowed with other employees).” (ODJFS Request for
Information, Feb. 13, 2004 at 2.)
{¶ 47} While Trombley repeatedly argued that the company would
have been willing to help Shephard in any way, in the over four
years of her employment and despite receiving several medical
reports, Shephard was only offered two milk crates to use as a
chair. If such treatment qualifies as “reasonable accommodation,”
what other indication is there that if Shephard had continued to
complain she would have received something greater than milk
crates?
{¶ 48} It is also noteworthy that after Shephard filed her claim
for worker’s compensation, the initial examiner specifically found
that Shephard quit her employment due to personal injury/illness.
The examiner found that Shephard provided documentation to her
employer, that her employer knew of her medical problems, and that
Shephard’s personal physician had advised her to resign.
Examiner’s Fact Finding Report at 2. After making these findings,
the examiner determined that Shephard quit with just cause.
Examiner’s Fact Finding Report at 2. Although the majority focuses
on the subsequent denials of Shephard’s claim, initially, this was
not the case.
{¶ 49} For these reasons, I believe that Shephard’s notification
to her employer of her continued medical problems, coupled with her
employer’s unwillingness to provide her with anything other than a
make-shift chair, qualified as a resignation with just cause. I
would, therefore, reverse the decision of the trial court.